Robert Carson Jr v. Commonwealth of Kentucky ( 2021 )

RENDERED: APRIL 29, 2019
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0585-MR
ROBERT CARSON JR. APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE GREGORY BARTLETT, JUDGE
NO. 14-CR-00287
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
REVERSING AND REMANDING
Robert Carson Jr. appeals from a judgment of the Kenton Circuit Court
convicting him of four counts of first-degree sexual abuse; three counts of first-
degree sodomy; and three counts of incest. Carson contends that the trial
court erred by 1) denying his motion to suppress his statements to police; 2)
permitting the investigating detective to give an improper lay opinion as to
Carson’s veracity; and 3) allowing the prosecutor to provide unsworn testimony
through her questioning. After review, we conclude that the trial court properly
denied Carson’s motion to suppress. However, the trial court erred by
permitting the investigating detective to provide lay opinion testimony
regarding his conclusion that Carson was lying during his interview derived
from behavioral analysis. This error warrants reversal, and we remand the
case for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In December 2013, Stephen,1 then ten years old, disclosed to a family
member that Carson subjected him to sexual contact on multiple occasions.
Stephen later told a social worker at the hospital that Carson touched his butt
and genitals and kissed him. Following this hospital visit, relatives of Stephen
reported these incidents to Covington Police. Police referred Stephen to the
Children’s Advocacy Center (CAC). During his CAC interview, Stephen claimed
that Carson had touched his genitals and butt on several occasions.
Detective Justin Bradbury observed the CAC interview and began
investigating the allegations. On January 24, 2014, Det. Bradbury interviewed
Carson. Throughout the four-hour interview, Det. Bradbury employed the
“Reid Technique,” a multi-phase interrogation technique in which an
investigating officer analyzes the suspect’s behavior, looking for signs of
deception, and then engages in a confrontational interrogation if they believe
they spot such indicators. Carson ultimately admitted to a series of sexual
acts, including the touching of genitals, masturbation, and oral sex.
Carson was indicted of four counts of first-degree sexual abuse; three
counts of first-degree sodomy; and three counts of incest. Prior to trial, Carson
moved to suppress his statements made to Det. Bradbury during his
interrogation. He argued that Det. Bradbury violated his Fifth Amendment
1 We use a pseudonym to protect the identity of the victim.
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right to remain silent. The trial court denied the motion, concluding that
Carson failed to clearly invoke his right.
Following a lengthy pre-trial period, the case proceeded to trial in June of
2019. The jury found Carson guilty on all counts. The jury recommended a
sentence of twenty years on each count of sodomy; twenty years on each count
of incest; and five years on each count of first-degree sexual abuse. The
sentences were recommended to run concurrently for a total of twenty years’
imprisonment. The trial court sentenced him accordingly, and this appeal
followed. Additional facts relevant to Carson’s claims of error are set forth
below.
II. ANALYSIS
A. The admission of Det. Bradbury’s opinion testimony concerning
Carson’s verbal and non-verbal cues of deception was reversible
error.
Carson first asserts that the trial court erred in allowing Det. Bradbury
to testify as to his ability to detect deception through verbal and non-verbal
cues. Carson contends that Det. Bradbury’s testimony invaded the province of
the jury when he testified that Carson exhibited behaviors consistent with
deception during his interrogation. We review a trial court’s rulings on
evidentiary issues for an abuse of discretion.2 The test for abuse of discretion
2 Meece v. Commonwealth, 348 S.W.3d 627, 645–46 (Ky. 2011).
3
is whether the court’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.3
Pursuant to KRE4 701, a lay witness may provide opinion testimony only
if their opinion is (1) based on their perception; (2) helpful to a clear
understanding of the witness’ testimony or the determination of a fact at issue;
and (3) not based on scientific, technical, or specialized knowledge. More often
than not this rule permits shorthand testimony regarding certain inferences
the witness drew from behavior they observed.5 As a result, Kentucky law
permits witnesses to give opinion testimony regarding a person’s apparent
intoxication;6 the apparent age of a person;7 and a person’s apparent mental
or emotional state.8 The principle connecting each of these cases is that a
witness may testify as to a conclusion they drew about a person’s behavior
from their personal observation of certain facts.
Further, “[t]he degree to which a witness may give an opinion, of course,
is predicated in part upon whether and the extent to which the witness has
sufficient life experiences that would permit making a judgment as to the
3 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)
(citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
4 Kentucky Rule of Evidence.
5 See Federal Rule of Evidence (FRE) 701 advisory committee’s note (“Witnesses
often find difficulty in expressing themselves in language which is not that of an
opinion or conclusion.”).
6 Motorists Mut. Ins. Co. v. Glass, 946 S.W.2d 437 (Ky. 1997).
7 Howard v. Kentucky Alcoholic Control Bd., 172 S.W.2d 46 (Ky. 1943).
8 Commonwealth v. Sego, 872 S.W.2d 441, 444 (Ky. 1994).
4
matter involved.”9 Consequentially, law enforcement officers may provide lay
opinion testimony as to their experience-based interpretations of certain facts
which they personally observed.10 Pursuant to this rule, this Court has
permitted law enforcement officers to testify as to their interpretation of drug-
sniffing dogs behavior;11 that a juice bottle appeared to be a homemade
silencer;12 and that a suspect appeared intoxicated due to his performance on
a field sobriety test.13 But when the subject matter of the officer’s opinion is
either not based on personal knowledge or based on specialized knowledge, the
trial court must first qualify the officer as an expert.14
One area in which neither lay nor expert testimony is appropriate is the
veracity of a witness.15 Just as we prohibit the introduction of mechanical
9 Hunt v. Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009) (internal citations and
quotations omitted).
10 See e.g., Iraolo-Lovaco v. Commonwealth, 586 S.W.3d 241, 247 (Ky. 2019);
Burton v. Commonwealth, 300 S.W.3d 126, 140 (Ky. 2009) (“[P]olice officers and lay
witnesses have long been permitted to testify as to their observations of a defendant’s
acts, conduct and appearance, and also to give an opinion on the defendant’s state of
impairment based upon those observations.”) (citation omitted).
11 Debruler v. Commonwealth, 231 S.W.3d 752, 757-58 (Ky. 2007).
12 Hunt v. Commonwealth, 304 S.W.3d 15, 30-31 (Ky. 2009).
13 Iarolo-Lovaco v. Commonwealth, 586 S.W.3d at 247.
14 See McGuire v. Commonwealth, 595 S.W.3d 90, 95 (Ky. 2019) (“Whether a
certain quantity of methamphetamine is consistent with personal use, whether a
certain type of bag is generally used to carry drugs, and whether the items found on a
person are indicative of personal drug use are all subjects outside the scope of lay
witness testimony.”).
15 Ordway v. Commonwealth, 391 S.W.3d 762, 789 (Ky. 2013).
5
polygraphic evidence, we similarly restrict the ability of a witness to act as a
human lie detector on the stand.16 As such, “neither expert nor lay witness
may testify that another witness or a defendant is lying or faking. That
determination is within the exclusive province of the jury.”17
Here, the challenged testimony centered on Det. Bradbury’s use of the
Reid Technique during his interrogation of Carson. When introducing the
video recording of Carson’s interrogation, the Commonwealth elicited testimony
concerning the Reid Technique:18
Commonwealth (CW): You told us earlier that you underwent
specialized training in conducting interviews or interrogations.
Can you tell us more about the trainings that you have completed?
Det. Bradberry (DB): I attended a one-week course at the
Department of Criminal and Justice Training in Richmond,
Kentucky, and I attended a four-day course through the Jenny and
John E. Reid Institute on interview and interrogation, as well as
advanced interview and interrogation.
CW: What is the John E. Reid technique or institute?
DB: It is a nationally accepted technique. It is used by many,
many police departments across the United States because of its
high standard.
16 Cf. Ice v. Commonwealth, 667 S.W.2d 671, 675 (Ky. 1984) (prohibiting the
introduction of polygraph evidence).
17Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997) (quoting State v.
James, A. 2d 471, 473 (R.I. 1989)).
18 We note that this is not this Court’s first encounter with the Reid Technique.
See Esper v. Commonwealth, 2016-SC-0003666-MR, 2018 WL 898215 (Ky. Feb. 15,
2018); see also Golden v. Commonwealth, 2016-SC-000179-MR, 2017 WL 1536253(Ky. Apr. 27, 2017). Though we ultimately affirmed those convictions, neither case
presented the issue before us today: whether an investigating officer may testify that
he believed a criminal suspect to be lying based on the Reid Technique’s methods of
behavioral analysis.
6
Det. Bradbury proceeded to describe the mechanics of the Reid
Technique. A Reid interview begins with a series of questions intended to
provoke certain physical or verbal responses. Based on the investigating
officer’s analysis of those responses, he or she will determine whether to
proceed with questioning. Det. Bradbury described the behavioral analysis
portion as follows:
CW: You said the first phase, the behavioral analysis, you look at
the body language and verbal cues, and you ask questions to
provoke a response. Are your questions designed to provoke a
response of guilt?
DB: No.
CW: What do you mean by that?
DB: Its designed to provoke a response. We are looking for body
language, verbal cues. We are look for things that indicate
truthfulness or deception. That is what we are looking for.
As Det. Bradbury continued to describe how an interview is initiated,
Carson objected. He argued that the Commonwealth had not certified Det.
Bradbury as an expert in behavioral analysis. The Commonwealth responded
that Det. Bradbury was being offered as a lay witness and the questioning
concerned his training. The trial court overruled the objection but stated “[Det.
Bradbury] can testify as to how he was trained and what he was trained to do
and how he implemented that training…but he cannot come to conclusions on
truth or honesty.”
Yet, immediately thereafter, Det. Bradbury testified he was trained on his
ability to determine a suspect’s truthfulness:
7
CW: Does the Reid technique train you in what verbal or nonverbal
cues to look for to identify whether a person is being truthful or
being deceptive?
DB: It does.
CW: Ok, does your analysis of those cues affect how you proceed
with your interview?
DB: It does.
CW: How so?
DB: If we see indications of deception, more specifically if we see
groupings or clusters or multiple indicators of deception that may
drive our decision to proceed into an interrogation.
CW: What if you don’t see a cluster of cues indicating deception?
DB: I call that the drop back and punt phase. So, at that point we
have options. We can stop the interview at that point, we can then
pursue other avenues of investigation, follow up with leads, or
search for other possible suspects.
Following this testimony, the court sua sponte called a bench conference.
The court expressed concern that Det. Bradbury was purporting to be a “verbal
lie detector” through his testimony. After a brief discussion the court
admonished the jury as follows:
Ladies and gentlemen, you’ve been hearing testimony about this
interrogation technique called the “Reid Technique.” You need to
be advised that the jury is the determiner of credibility and truth,
okay? You are the fact-finding body, so you do not consider that
technique as being a determinative factor as to whether anything is
being truthful or not truthful. Okay? Alright.
But the Commonwealth persisted with veracity questions directed to Det.
Bradbury and he testified that regarding numerous “clusters” of non-verbal
and verbal cues in Carson that caused him to elevate the interview to an
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interrogation. The Commonwealth emphasized the meaning of this post-
admonition testimony in closing argument:
Det. Bradberry told you if there are no clues during the behavioral
analysis portion, you can drop back and punt. But I want to talk
about what those cues are. Det Bradbury told you he’s looking for
statements or indications of involvement, meaning indicators that
there is validity to these claims of improper sexual behavior. Or in
the case denial of that involvement, whether those denials are
truthful.
Here, Det. Bradbury’s testimony ventured beyond the proper scope of lay
opinion. Initially, we emphasize the testimony regarding a suspect’s body
language is proper. Such testimony is fact-based and clearly derived from the
perception of the interviewing officer. Furthermore, an investigating officer is
surely permitted to testify as to his or her observations of a defendant during
the interview and may even offer opinions regarding the defendant’s
demeanor.19 Det. Bradbury’s testimony in this case, however, concerned what
he characterized as Carson’s deception as revealed through the Reid Technique
rather than his demeanor. Det. Bradbury testified that he spotted “clusters” of
deceptive behaviors from Carson. Effectively, he testified that he was able to
determine that Carson was lying through visual observation of his body
language. This form of testimony infringes on the “province of the jury.”20
19 See Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997) (holding that
officer may opine that defendant looked at them strangely or intensely) overruled on
other grounds by McQueen v. Commonwealth, 942 S.W.2d 293 (Ky. 1997).
20 See Moss, 949 S.W.2d at 583.
9
This impropriety was compounded by Det. Bradbury’s claims of
specialized knowledge of behavioral analysis. The detective testified that he
participated in a four-day training in an advanced interrogation technique,
developed by a private firm, which permitted him to determine if a person was
being truthful through an analysis of their behavior. Importantly, Det.
Bradbury did not claim that this knowledge derived solely from his experience
as a detective, nor his involvement in numerous similar investigations.
Instead, his ability to detect deceptive behavior stemmed from his application
of the principles and mechanics of a technique taught by interrogation
specialists. In doing so, he claimed to possess knowledge beyond that of a lay
witness.
The admission of Det. Bradbury’s Reid Technique based opinion
concerning Carson’s veracity was error. This error was preserved by Carson’s
contemporaneous objection. We review preserved evidentiary errors under the
harmless error standard of RCr21 9.24.22 Pursuant to this standard, those
errors “will be deemed harmless…if we can say with fair assurance that the
judgment was not substantially swayed by the error.”23 “Our inquiry is not
simply whether there [is] enough [evidence] to support the result, apart from
the phase affected by the error. It is rather, even so, whether the error itself
21 Kentucky Rules of Criminal Procedure.
22 Ordway, 391 S.W.3d 762, 774 (Ky. 2013).
23 Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010).
10
had substantial influence. If so, or if one is left in grave doubt, the conviction
cannot stand.”24
Here, we are significantly concerned that Det. Bradbury’s testimony had
a substantial influence on the outcome of the case. The pillars of the case
against Carson were his interview with Det. Bradbury, during which he made
inculpatory statements, and Stephen’s testimony. Throughout the four-hour
interview, Carson makes inculpatory statements as to numerous criminal acts.
However, he also repeatedly denied many of Det. Bradbury’s assertions
regarding his interactions with Stephen. In a case where a significant portion
of the evidence consists of the accused’s own words, the erroneous
introduction of improper opinion testimony concerning the veracity of those
statements risk playing an outsized role in the judgment.
Here, the trial court noted the problematic nature of the testimony and
attempted to provide an admonishment to the jury that it was not bound to
accept Det. Bradbury’s assertions as to Carson’s credibility. And under our
case law, the “jury is presumed to follow an admonition to disregard evidence
and the admonition thus cures any error.”25 Such presumption can be
overcome by a showing either that there is an (1) “overwhelming probability
that the jury will be unable to follow the court’s admonition and there is a
strong likelihood that the effect of the inadmissible evidence would be
24 Id. (internal quotations and citations omitted).
25 Dunlap v. Commonwealth, 435 S.W.3d 537, 570 (Ky. 2013).
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devastating to the defendant,” or (2) the question asked lacks any factual basis
and was highly inflammatory.26
Though we commend the trial court for quickly attempting to remedy the
introduction of inappropriate testimony, the admonishment provided did not
wholly address the error presented. Even after the admonishment, Det.
Bradbury testified multiple times that he noted numerous cues in Carson’s
behavior that led him to proceed to the second phase of the interview. In doing
so, he further perpetuated the error that the admonishment was intended to
correct. Prior to the admonishment, he testified that these “clusters” of “cues”
were behavioral indicators of untruthfulness. His post-admonishment
statements, therefore, reaffirmed the specialized nature of his testimony and
restated his opinion that he observed untruthful body language in Carson.
Though an admonishment is a powerful tool for redressing past errors,
the perpetuation of an error post-admonishment necessarily weakens any
effectiveness it may claim. In this case, there is a significant possibility that
the jury failed to recognize the remedial force of the admonishment due to the
continued introduction of problematic testimony. At bottom, we cannot
conclude that the erroneous admission of this testimony was harmless. And,
when considering the actual language of the admonishment, it permits the jury
to consider the Reid Technique credibility testimony to be considered, just not
as a “determinative factor”.
26 Johnson v. Commonwealth, 105, S.W.3d 430, 441 (Ky. 2003).
12
B. Carson’s Fifth Amendment rights were not violated because he
failed to clearly invoke his right to remain silent.27
Carson argues that the trial court failed to suppress his confession to
Det. Bradbury in violation of his Fifth Amendment rights. Our review of a
denial of a motion to suppress evidence consists of two steps.28 First we review
the trial courts factual findings for clear error; then, we review the trial court’s
application of the law to those facts de novo.29 Carson claims that he
attempted to invoke his right to remain silent twice during the interview and
was ignored.
When a suspect invokes his right to remain silent, any custodial
interrogation must immediately cease.30 To be effective, however, any
invocation of the right must be clear and unambiguous.31 That is, a suspect
must articulate his intention to remain silent “in a manner that a reasonable
police officer in the situation would understand that the suspect wished for
questioning to cease.”32
Carson identifies two statements which he alleges should have put a
reasonable officer on notice that he intended to end the interrogation. At one
point during the interview, Carson tells Det. Bradbury to “please stop.” Shortly
27 This argument was preserved by Carson’s motion to suppress his statements
from the interview.
28 Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).
29 Id.30 See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
31 Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010).
32 Meskimen v. Commonwealth, 435 S.W.3d 526, 531 (Ky. 2013).
13
thereafter, Carson states “I want to get out of here.” Considered in isolation,
each of these statements could be considered as expressions of intent to end
the questioning. Considered in context, however, neither statement is clear
and unequivocal.
The first statement “please stop” occurred after Det. Bradbury accused
Carson of performing oral sex on Stephen. Carson conceded earlier in the
interview that some touching and kissing had occurred but denied performing
oral sex. After being confronted with the accusation, he said “Please stop. I’m
telling the truth.” A reasonable officer in the situation could understand that
statement to mean “please stop accusing me of performing oral sex” rather
than “please stop the interview.” As such, this statement permits legitimate
ambiguity in its interpretation and failed to invoke the right to remain silent.
The second statement, while less ambiguous, still failed to clearly
indicate that Carson intended to remain silent and end the interrogation. After
Det. Bradbury’s repeated assertions that Carson was not providing the entire
story, the following exchange occurred:
Carson: I don’t… I want to get out of here. No, I know, no…I
understand you’re doing your job I know that.
Det. Bradbury: And I know you want to get out of here, buddy,
we’ve got to get this resolved.
Carson: I didn’t mean it like that. I mean, the stuff I told you, is
what happened. That’s it.
14
Carson continued speaking immediately after stating that he wished to
leave. Bullitt v. Commonwealth proves instructive.33 There, the defendant told
officers that he was “done speaking,” but continued to speak to detectives on
his own volition afterwards.34 As a result, we held his otherwise clear
invocation was rendered ineffective.35 Here, Carson’s statement was less clear
and he continued to engage with Det. Bradbury immediately. As a result, the
statement was insufficient to invoke Carson’s right to remain silent. Because
Carson’s Fifth Amendment rights were not violated, the trial court did not err
in denying the motion to suppress.
C. Supreme Court Rule (SCR) 3.130 (3.4)
Finally, Carson asserts that the prosecutor impermissibly gave unsworn
testimony through her questioning of Stephen on re-direct examination.
Because it is unlikely to recur, we do not address the issue fully. We
emphasize, however, that SCR 3.130 (3.4) plainly prohibits an attorney from
communicating personal knowledge of the facts at issue. On remand, counsel
shall take care to conform their questioning to the requirements of this rule, as
expressed in Holt v. Commonwealth.36
33 595 S.W.3d 106, 117 (Ky. 2019).
34 Id.35 Id.36219 S.W.3d 731, 732-33 (Ky. 2007). See also Fisher v. Commonwealth, _
S.W.3d _, 2019-SC-0738-MR, 2021 WL 1133592 (Ky. 2021)(finding that an attorney
erred when suggesting that they possessed personal knowledge due to an out of court
conversation with a witness, though such error was found to be harmless).
15
III. Conclusion
For the reasons set forth above, we reverse in part the judgment of the
Kenton Circuit Court and remand the case for further proceedings consistent
with this opinion.
Minton, C.J.; Conley, Hughes, Keller, Lambert, Nickell, and VanMeter,
J.J.; sitting. Minton, C.J.; Conley, Hughes, Lambert, and VanMeter, J.J.;
concur. Nickell, J., concurs in result only. Keller, J., dissents without opinion.
COUNSEL FOR APPELLANT:
Aaron Reed Baker
Assistant Public Advocate
Frankfort, KY
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Mark D. Barry
Assistant Attorney General
Frankfort, KY
16